The Harm In Hate Speech

The Harm In Hate Speech

While reading Jeremy Waldron’s The Harm in Hate Speech, I could not help but find myself reminded of the opening line from the old classic song “Signs” by the Canadian group, Five Man Electric Band. The lyrics, quite fittingly, opens with the words, “And the sign said long haired freaky people need not apply.” The song, for those who may or may not know it, goes on to challenge the use of signs to communicate various messages, including, not surprisingly, discriminatory messages aimed at visible minorities.

Signage is part of the public realm of any state. They are commonly used to communicate a wide range of messages and ideas. Moreover, some signage can reveal something about the values, principles and commitments of the state and its citizenry. For example, some signs communicate messages of diversity and tolerance while others may endorse various manifestations of racist, sexist, and homophobic beliefs and values. In my own experience, having been raised in Toronto and now residing in south Florida, I have noticed the gross discrepancy between the various signs in my environment; from those welcoming minorities (e.g. LGBT flags, promotions of multicultural values) to Confederate flags and bumper stickers featuring Uncle Sam demanding I speak English or else leave America.

Jeremy Waldron’s book is written in a spirit similar to the song but with the explicit “modest intent” to “consider whether American free-speech jurisprudence has really come to terms with the best that can be said for hate speech regulations.” (p. 11) According to Waldron, the United States remains the lone constitutional democracy not to explicitly introduce hate-speech legislation. This leads to the seemingly obvious question of “Why have most liberal democracies undertaken to prohibit . . . manifestations of hatred, [i.e.] visible defamation of social groups, rather than permitting and tolerating them in the name of free speech?” (p. 13) Although Waldron recognizes both the general unpopularity and difficulty of any set of arguments aimed at limiting forms of speech, he maintains that travelling down such a “road is worth exploring, even if no one’s mind is changed . . . as it is always good to try to get clear about the best case that can be made for a position one opposes.” (p. 6)

The book consists of eight chapters. The chapters may be roughly divided into three substantive parts. The first part, which incorporates chapters two and three, offers a mixed historical and conceptual approach concerning how group libel and hate speech have been understood in the American context. The second substantive part, which consists of chapters four and five, offers the core arguments for the value of dignity and the need to assure the equal moral standing of all citizens. Waldron draws on a variety of arguments, including from the works of John Rawls, the pornography debate, and environmental ethics (and aesthetics), to argue that the literal physical appearance of a well-ordered society is one that requires limits on forms of expression that solely aim to pollute the environment and further undermine the equal dignity of targeted minorities. Chapter five then takes up and defends the common distinction between ‘offense’ and ‘indignity’. Finally, in chapters six and seven, Waldron engages with arguments from the late C. Edwin Baker and Ronald Dworkin — both of whom put forward some of the strongest arguments in favour of protecting free speech. According to Waldron, neither Baker nor Dworkin offers a strong enough account for permitting free speech without limitations.

The book takes up an all-too-common subject in American jurisprudence, yet it falls short of offering anything more than a regurgitated argument on the subject. And although Waldron avoids situating the difficulties with hate speech laws in the context of a balancing act between competing rights (individual vs. group), the attempt to instead draw on substantive democratic values in an effort to show that dignity and assurance are public goods worthy of protection also falls short of offering anything substantively new.

Waldron begins with an explanation of the primary motivation behind the book. Like the song ‘Signs’, he recounts a story of a Muslim man walking with his seven-year-old son and ten-year-old daughter on a street in New Jersey when they are confronted with a sign. The sign reads “Muslims and 9/11! Don’t serve them, don’t speak to them, and don’t let them in.” (p. 1) What is the point of these signs? According to Waldron it is “to send [hateful] messages, to make these messages part of the permanent visible fabric of society.” (p. 3)

It is not uncommon to hear some liberal theorists’ argue that although they too detest such modes of hate speech we have to learn to live with it. That is, despite abhorring such signs it should not be the concern of the law, as the right to free speech protects such expressions despite their hateful content. Yet Waldron suggests that there is something socially and legally significant, namely, that there is a “sort of public good of inclusiveness” (p. 4) that constitutional democracies sponsor and are committed to but is undermined (or made more difficult to realize) by the existence of such signs. Exploring what these public goods are is the central concern of the book.

The core argument of the text, namely, that hateful signage undermines the public goods of dignity and assurance that constitutional democracies have a moral obligation to promote and protect, is presented through three steps: (i) Offering a historical account of libel laws, (ii) Drawing out a view of defamation that conflicts with substantive public goods, and finally (iii) Questioning what the literal appearance of a well-ordered society committed to dignity and assurance might look like (or at least avoid looking like).

The first move is conveyed through Waldron’s historical account of group libel (defamation). Waldron highlights that, at least historically, American law has limited some forms of speech. For example, for a short period the Sedition Act of 1798 made it an “offense to bring the president or Congress into disrepute or ‘to excite against them . . . the hatred of the good people of the United States.’” (p. 19) This was applied to the case of Colonel Matthew Lyon who had sent a letter from Philadelphia to the newspaper Vermont Journal expressing his low opinion of President John Adams and the current administration. The limits were not merely political, as blasphemous libel laws were also enforced. In 1823, a man was jailed for sixty days for having written an essay in the Boston Investigator that “denied the existence of God, affirmed the finality of death,” and declared that the whole story concerning Jesus Christ as a work of fiction (p. 22). Finally, in 1919 U.S. Supreme Justices ruled that free speech does not protect one’s right to shout “Fire” in a crowded theatre.

Waldron questions what it is that “we believe now about free speech that most American judges and politicians did not believe in 1798 or 1823 or 1919?” (p. 24) The explanation offered draws on the balance of power between the American government and its people during the early years of the Union as compared to the present. Waldron suggests that at one time the political institutions of the United States were less secure and as a result could not afford to absorb slanderous speech. But as time passed the “government had become so powerful that it did not need the support of the law against the puny denunciations of the citizenry.” (p. 30) In fact, the shift of power now reflects a society where it is the citizens that demand their right to free speech be protected from government infringement. But Waldron is more interested in the rationale behind the initial limitation on slanderous speech and suggests that the rationale was concerned with the need to help establish a sense of governing assurance. Waldron rhetorically asks whether this also applies to vulnerable minorities. “Is their status as equal citizens in the society now so well assured that they have no need of the law’s protection against the vicious slurs of racist denunciations?” (ibid.)

The second main move is undertaken in the discussion of “libel” and “defamation” and what Waldron notes to be their close association but also main difference. Criminal libel comes in various forms: for example, the Sedition Act made it a criminal offense to publish false, scandalous, or malicious writing, while blasphemous libel targeted anti-Christian pronouncements and obscene libel covered the publications of any pornographic material. “We mostly think of libel as a species of defamation; and those with a smattering of law know that libel is distinguished from slander by being written rather than just spoken. But in its original meaning, a “libel” could be any published declaration by an individual, printed in a pamphlet or nailed up on a church door,” (p. 44) such that, defamation “disseminated in speech is slander; defamation committed to paper is libel. The thought is that libel is a more serious offense of the two, because the imputations it embodies take a more permanent form.” (p. 45) Criminal law has an interest in such forms of publications: “It is the fact that something expressed becomes established as a visible or tangible feature of the environment – part of what people can see and touch in real space (or virtual space) as they look around them: this is what attracts the attention of the criminal law.” (p. 45)

Several reasons are forwarded for why such written forms of expression may be within the purview of criminal law. One reason for criminally limiting defamation is that such expressions attack public order thus making it the criminal laws business. But this is only one dimension of public order; “Public order might also comprise society’s interest in maintaining among us a proper sense of one another’s social or legal status.” (p. 46) Dignity here is not strictly synonymous with Kant’s conception of dignity —though it clearly derives much of its form from Kant. Rather, it refers to the basic legal (and social) interests citizens have in a sense of being assured of their equal standing in society. This is what Waldron takes to be the central interest of group-libel laws, “Group-libel laws aim at protecting the basics of each person’s reputation against attempts (for example) to target all the members of a vulnerable racial or religious group.” (p. 47) It is this public good, i.e. the need to protect dignity and create an assuring environment, that propels the remainder of Waldron’s argument.

Chapter four is the central chapter of the book, whereby Waldron brings together the historical understanding of libel, defamation, and the substantive values of dignity and assurance to form the argument that the commitment to such public goods requires that we limit some signage in our shared public space. The discussion is couched in terms of Rawls’s political philosophy, particularly his concern with what a well-ordered society ought to adopt as its fundamental principles of justice. Although much of Rawls’s work is situated in ideal theory, Waldron suggests that he is deviating from Rawls’s project by asking the more practical question of “what does a well-ordered society look like?,” and insists that this is “not a coy way of asking what makes a society well-ordered, or what a well-ordered society is like. I am interested in how things literally look like; I’m interested in the visible environment.” (p. 68)

It is not clear why taking up such a question requires a break from Rawls’s writing. In particular, Waldron completely neglects Rawls’s detailed discussion in A Theory of Justice of what is to be done with unreasonable doctrines (and citizens). Rawls explicitly suggests that such hateful groups, who through their conduct (e.g. signage) aim to undermine the stability of the shared normative political order, ought to be contained or limited. A limit on such free speech is already suggested by Rawls, particularly when such actions undermine the dignity of the citizenry and public order. This argument is on par with Waldron’s critique yet he never makes mention of it. There is no justification offered for why Waldron’s argument is any different from Rawls’s or why a break is needed in the first place. This part simply leaves the reader questioning the novelty of Waldron’s argument. The core chapter of the book reads more like a re-rehearsed liberal argument for the need to limit some freedoms drawn from various well documented debates (e.g. pornography, Rushdie affair, etc.)

Overall, this book might leave some readers less than satisfied as there is very little novelty offered in it. It does rehash some of the core liberal arguments in favour of observing some limits on free speech. Waldron also writes in his usual convincing style but, as for substance, the core of the arguments simply draw on basic values of dignity and assurance in the hope of making a case for competing public goods. It does offer a rich historical account of libel laws and defamation but nothing that could not be gathered from other sources. For those looking for a more rigorous argumentative account, they can easily find arguments similar to Waldron’s in the works of other liberal theorists.

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